Both Possible and Improbable—Could COVID-19 Measures Give Rise to Investor-State Disputes?
Contemporary Asia Arbitration Journal, Vol. 13, No. 1, pp. 99-184, May 2020; City University of Hong Kong Centre for Chinese and Comparative Law Research Paper Series Paper No. 2020/019
87 Pages Posted: 3 Jun 2020 Last revised: 17 Nov 2020
Date Written: May 29, 2020
This Article explores the role of investment law and investment arbitration in (and after) the COVID-19 crisis in the context of transnational health policy. This Article discusses a technical possibility (COVID-19 measures can give rise to investor-state disputes) and explains why most of these claims will probably not be successful (most COVID-19 measures are covered by international defenses). Through a comprehensive survey of measures adopted across 50 jurisdictions, the Article shows that most of these measures are in line with the World Health Organization regulations. Furthermore, these domestic measures could be subject to a number of international law exceptions, allowing States to justify the potential violations. Nevertheless, the Article identifies a minority of measures that may have the potential to lead to successful claims. Paradoxically, the most problematic measures (such as taxation measures and sovereign debt increase) only indirectly address the pandemic.
Keywords: ISDS, investment treaties, investor-state arbitration, exceptions, taxation, sovereign debt
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